Citation Nr: 1303324
Decision Date: 01/31/13 Archive Date: 02/05/13
DOCKET NO. 12-24 384 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for right hip degenerative joint disease (DJD) (a right hip disability) claimed as secondary to a service-connected right knee disability.
2. Entitlement to service connection for lumbar spine DJD, claimed as secondary to a service-connected right knee disability.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
J. Chapman, Associate Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from July 1972 to September 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO).
In his January 2012 notice of disagreement, the Veteran mentions he was treated for a cervical spine complaint in service. It is unclear from his statement whether he seeks service connection for a cervical spine disorder. A claim of service connection for such disability has not been adjudicated by the agency of original jurisdiction (the RO) and the Board does not have jurisdiction in the matter. The matter is referred to the RO for clarification and any appropriate action.
The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to this claim. While the notice provisions of the VCAA appear to be satisfied, the Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claim. See 38 C.F.R § 3.159 (2012).
At the outset, the Board notes that it is well established that once VA's duty to assist by providing an examination is triggered, it must provide an examination that is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007).
It is not shown or alleged that a right hip and/or low back disability was manifested in, or is directly related to, the Veteran's service. The Veteran's theory of entitlement is primarily one of secondary service connection. He claims that he has developed hip and lower back disability secondary to his service-connected right knee disability.
On July 2011 VA examination of the Veteran, the diagnoses included right hip and lumbar spine DJD. The examiner opined that such disabilities were not caused by or related to the Veteran's service-connected right knee disability. The examination and opinion offered are not adequate for rating purposes because the opinion does not address all theories of entitlement that must be considered.
A disability will be service connected when that disability is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). Furthermore, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. 38 C.F.R. § 3.310(b). Therefore, a disability may be service connected on a secondary basis by demonstrating that the disability is either (1) "proximately due to or the result of [an already] service-connected disease or injury," or (2) aggravated by an already service-connected disease or injury, "whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition . . ." Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).
Governing law/caselaw provide that when adjudicating a secondary service connection claim VA must address the aggravation aspect of such claim. See Allen, 7 Vet. App. at 449 ("[I]t is a big stretch of the English language to construe the phrase "no etiological relationship between the Veteran's service connected right knee arthritis and the subsequent onset of left knee and bilateral hip arthritis as encompassing aggravation, especially considering the use of the word 'onset.'"). The July 2011 examiner did not adequately address whether the Veteran's service-connected right knee disability has aggravated his low back or right hip disability; consequently, a supplemental medical opinion in this matter is necessary.
Accordingly, the case is REMANDED for the following:
1. The RO should arrange for the Veteran's claims file to be forwarded to the July 2011 VA examiner (or to another orthopedist if the July 2011 examiner is unavailable) for review and an advisory medical opinion regarding a nexus between his service connected right knee disability and his claimed disabilities of the low back and right hip. Specifically, the opinion must address whether or not the low back and right hip conditions were caused or aggravated by the service connected right knee disability. Based on review of the record (to include this remand), the consulting provider should provide an opinion that responds to the following:
Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's low back and right hip disabilities (DJD) were either caused or aggravated by (increased in severity due to) his service-connected right knee disability. If the opinion is to the effect that the right knee disability did not cause, but aggravated, the low back and/or right hip disabilities, the examiner should identify, to the extent possible, the degree of the disability (pathology/impairment) that is due to such aggravation.
The examiner must explain the rationale for all opinions, citing to supporting factual data/medical literature.
2. The RO should then readjudicate the claims. If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).